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Protecting Web Sites From Their Members

When Congress voted for the Communications Decency Act of 1996, most members thought it was just about pornography, says U.S. Rep. Zoe Lofgren. But one section of the CDA had much broader implications, the California Democrat told the Internet Education Foundation's second annual "State of the Net Conference" at Santa Clara University in Silicon Valley last week.

The CDA, which would have prevented the posting of material deemed "harmful to minors" was mostly struck down by the Supreme Court on First Amendment grounds. But the court let stand Section 230, which immunizes Internet service providers from being held liable for what their members post, by stating that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

The section was designed to protect service providers - at the time, mostly dial-up services like AOL and Prodigy - from prosecution under CDA for distributing content posted by their members. It's analogous to holding phone companies harmless for obscene phone calls made by their customers or shielding the post office from liability for illicit material sent through the mail.

But, Section 230 has also been used to protect social-networking companies and other Web sites with user-generated content, whose business plans weren't even on the drawing board when the law was written back in the mid-1990s.

MySpace, for example, used it to successfully defend a case in federal court brought by a teenage girl and her mother who claimed that the social-networking site failed to take adequate precautions to protect the daughter from being assaulted by a 19-year-old man she met on the service. She claimed to be 18, but was actually 13.

Thanks to Section 230, Craigslist won its case against the Chicago Lawyers Committee for Civil Rights over housing ads that included such terms as "no minorities" and "no children." Even though such ads, in some cases, violate the Fair Housing Act, the judge ruled that Craigslist, "is not the author of the ads and could not be treated as the speaker."

JuicyCampus.com also can rely on Section 230 to protect itself against lawsuits and prosecutions stemming from the potentially libelous statements that are all too common on this gossip site, according to Michael Fertik, CEO and co-founder of ReputationDefender. When I visited that site last week, the second most prominent post read "Paul (his last name was included) is a ####### piece of #### who is a closet gay that gets drunk and fools around with other guys secretly." As mean and possibly libelous as that statement might be, Fertik said JuicyCampus can't be touched.

In theory, "Paul" could try to take action against the person who wrote the statement, but he'd be hard pressed to count on the owners of JuicyCampus to help find that person. The company promises that posters are "100% anonymous," and even advises people "particularly concerned about your online privacy" to use Google to search out services "that offer free IP-cloaking."

Fertik, whose company helps people manage their online reputations, thinks there needs to be a mechanism for people who have been defamed or libeled to order the removal of offending content. His idea is to "take a page from the playbook of the Digital Millennium Copyright Act, which allows copyright holders to issue a takedown notice to services that are hosting material without permission of the copyright holder.

According to the U.S. Copyright Office: "Upon receiving proper notification of claimed infringement, the provider must expeditiously take down or block access to the material."

Fertik would like to see a similar procedure for people who feel they have been defamed or their privacy rights have been violated. His proposal would "require a person who is saying that his or her rights have been violated to sign an affidavit under penalty of perjury so you can't just say it lightly. You have to go through a process formally that says it's harmful in a real way."

At the conference, Fertik made the point that, "Viacom can send one letter to YouTube to get 50,000 videos removed but if your daughter is on YouTube kissing a boy, you're out of luck."

Another panelist, Dan Dougherty of eBay, defended CDA Section 230, saying it is "effective and useful for its intended purpose of encouraging diversity and honest discourse on the Internet." He expressed concern about Fertik's notice-and-takedown proposal, saying that defamation is different from copyright, where there is registration and other evidence of ownership.

Dougherty expressed concern about the possibility of eBay being held liable for comments made in the company's feedback program, whereby users can leave comments about buyers and sellers. He fears that "people would use notice and takedown to manipulate honest feedback in ways that would not support or benefit the community."

I'm not ready to scrap the one provision of the CDA that actually encourages free speech by preventing service providers from being forced into becoming speech police. While I think it's appropriate for services like MySpace, Facebook and others to prohibit hate speech and other offensive content, I'd like it to remain an issue between the services and their members.

It's OK by me if Facebook or MySpace want to ban hate speech or nudity because they think it's inappropriate on their services. But it's quite another thing for them to do it because of fear of government or even civil prosecution.

On the other hand, I feel for people like "Paul" and anyone else who has been defamed, ridiculed, bullied or libeled on an Internet site. This type of speech can be not only emotionally harmful, but also could hurt Paul's chances of securing housing or attracting a mate. While I'm not ready to endorse Fertik's idea, I do think it deserves consideration.By Larry Magid